The prosecutor, Ms. Rebecca Mermelstein, told the court that Heicklen was tampering with the legal process because he hoped to “target prospective jurors,” with information about jury nullification. “I’m not telling you to find anybody not guilty,” he allegedly told an undercover officer. “But if there is a law you think is wrong then you should do that.”

Mermelstein claims that jury nullification advocacy is “not protected by the First Amendment.”

Heicklen wants a jury trial. Mermelstein asked the court not to grant the request, arguing that Heicklen would ask a jury to nullify the charges.

Yes, Mr. Heicklen was indeed targeting prospective jurors in front of that courthouse. He was exercising his First Amendment right of free speech by informing potential jurors that they have the right and the power to nullify the law as applied to the facts in a given case before them if they are convinced that its application would be unjust.

That’s been the law – like it or not -- around these parts, and in Western Civilization, for centuries.

During the alcohol prohibition days of yesteryear a substantial majority of cases against defendants in court were nullified by jurors who believed that the application of those laws was unjust.

Nullification was common in Alien and Sedition Act and Fugitive Slave Act cases. The doctrine was also used to frustrate many civil rights prosecutions in the South, and is often employed today in minor drug offense cases.

The use of nullification in drug trials is what brought Heicklen to his activism in the first place, he told the New York Times. In the 90s he smoked marijuana out in public, just so he could get arrested in protest of its prohibition. That’s when his advocacy of jury nullification began, arguing for its use as a means of negating minor drug and gambling charges.

Yes indeed Mr. Heicklen would ask a jury to nullify the charges against him if it came to that. He has a constitutional right to rely upon the law in his defense.

Any fair judge would have tossed the prosecutor’s case out of court long ago on the grounds that Mr. Heicklen enjoys a First Amendment Constitutional right as a matter of law to advocate the doctrine of jury nullification in a public place. There is no question of fact to decide.

Yes he can advocate, even in front of a Manhattan court house. He wasn’t tampering with a jury. He was exercising free speech.

Prosecutor Rebecca Mermelstein is in something of a bind. She has to admit that if Congress ever passed a law requiring Jews to wear Magen David armbands she would prosecute her family members for failure to comply. Can you spell 'oops'?